Citation NR: 9727241
Decision Date: 08/05/97 Archive Date: 08/14/97
DOCKET NO. 96-42 140A ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Committee on Waivers and
Compromises of the Regional Office in Newark, New Jersey
THE ISSUE
Entitlement to a waiver of recovery of an overpayment of
Department of Veterans Affairs (VA) disability compensation
benefits in the amount of $14,801.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Associate Counsel
INTRODUCTION
The veteran had active service from August 1943 to November
1945.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 1995 decision of the VA
Committee on Waivers and Compromises (Committee) of the
Newark, New Jersey, Regional Office (RO) of the Department of
Veterans Affairs (VA). The veteran was notified of this
determination in November 1995. The notice of disagreement
was received in December 1995. The statement of the case was
sent to the veteran in March 1996. The substantive appeal
was received in October 1996.
In a November 1995 rating decision, the RO recharacterized
the veteran’s service-connected psychiatric disorder as post-
traumatic stress disorder with major depression and
depersonalization disorder. The veteran’s rating was
increased from 50 to 100 percent, effective from August 18,
1995. In addition, the RO denied entitlement to special
monthly compensation. Thereafter, in a November 1995 letter,
the veteran was notified of this decision and of his
procedural and appellate rights. A notice of disagreement
was not subsequently received. As such, the issue listed on
the front page is the only issue in appellate status.
REMAND
In February 1995, the RO informed the veteran that the RO
proposed to reduce his disability compensation benefits since
his dependency/marital status had changed. In May 1995, the
RO notified the veteran that his benefits had been reduced
and that this action resulted in an overpayment of benefits.
He was advised that he would be informed of the amount of the
overpayment in the future. Subsequently, the veteran was
notified that the amount of the debt was $14,801. In June
1995, the veteran requested a waiver of recovery of the debt
at issue. His request for waiver was referred to the
Committee, however, the Committee denied the veteran’s
request. In December 1996, the veteran initiated his appeal
to the denial of his claim. In January 1996, a VA Form 9 was
received from the veteran. At that time, he indicated that
he wanted to appear at a personal hearing before a hearing
officer at the Regional Office. The veteran did not specify
whether or not he also wanted to testify at a personal
hearing before a member of the Board. In March 1996, the
veteran was issued a statement of the case. A further review
of the record shows that the veteran was issued a
supplemental statement of the case in October 1996 which
indicated that the veteran’s substantive appeal had been
received on October 4, 1996. The Board notes that this
document is not of record. As such, the RO should associate
that document or a copy of that document with the claims
file. In the event that this document cannot be located, the
RO should request that the veteran again be given the
opportunity to provide a copy of his arguments and evidence
in a substantive appeal.
In June 1997, the Board sent the veteran a letter requesting
that he clarify whether or not he still wanted a personal
hearing, and, if so, the type of personal hearing: a hearing
before a member of the Board in Washington, D.C.; a hearing
before a member of the Board at the RO; or a hearing before
RO personnel (not the Board) at the RO. He was advised in
that letter that if he did not respond it would assumed that
he still desired a hearing and the case would be remanded to
afford him one. The veteran did not respond.
Accordingly, this matter is REMANDED for the following
actions:
1. The RO should associate with the
claims file a copy of the veteran’s
October 1996 substantive appeal. If this
document if not longer available, the
veteran again be given the opportunity to
provide a copy of his arguments and
evidence in a substantive appeal.
2. The RO should schedule the veteran
for a personal hearing at the RO before a
member of the Board.
3. Following completion of the personal
hearing at the RO before a member of the
Board, the veteran’s claim file should be
returned to the Board for appellate
review. If the veteran does not report
for his scheduled hearing, the veteran’s
claim file should be returned to the
Board for appellate review.
No action is required of the veteran until further notice.
The Board expresses no opinion, either factual or legal, as to
the ultimate determination warranted in this case pending
completion of the requested action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
N. R. ROBIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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